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Red Hat pitches software-patents-free Europe

Hopes to flip court system

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Red Hat is today expected to join others in making the case against the enforcement of patents in software across the European Union.

The company is expected to submit an 11-page report to regulators, which makes the case that patents in software damages innovation in software.

If the principles in Red Hat's report are accepted, it could fundamentally tilt the balance in Europe against those using the law to enforce software patents and trying to exact payment for alleged infringements of patents through the court system.

Red Hat is expected to deliver its report to the Enlarged Board of Appeal of the European Patent Office, which is listening to arguments on whether patents in software should be enforced and upheld in EU-member country courts and regulatory bodies. Today is the deadline for report submissions.

The board is expected to receive a similar report from patents hit factory IBM, while it has already received reports from consumer electronics giant Philips and a number of academics.

Rob Tiller, Red Hat's vice president and assistant general counsel, told The Register that rulings in a number of European courts involving patents in software suggest software patents are being applied more broadly in Europe.

The task of the patent office board is to decide how to interpret the existing law in Europe and whether this should favour or go against enforcement of patents in software.

"As far as the European situation goes...it seems in some cases software patents have been granted more broadly in cases, but statutory language is contrary," Tiller said. "We suggest both for reasons of statue and sound policy that courts should go in a different direction."

Tiller called the issue of patents in software - and their enforcement through law - a "real concern" to Red Hat.

The company has backed the submission with a peer review of three FAT patents claimed by Microsoft in its recently settled US legal dispute with GPS device maker TomTom. The review is designed to uncover the existence of prior art that would potentially invalidate the three patents. Red Hat hopes prior art would lead to a formal review of the three patents and prevent Microsoft using these patents against other companies like TomTom.

"The fact the TomTom law suit was dropped by Microsoft doesn't mean there couldn't be another similar suit," Tiller said. "Since the patents were asserted against Linux on one occasion there's a concern it could happen again. We want to avoid this." ®